Parliament squandered it chance to influence the new constitution but heroically endorsed it. Although majority of the proposed amendments were ill conceived, a minority were desirable. Just to mention few: the amendment to increase the number of counties from 47 to a higher number agreeable (necessary to ensure adequate representation in the senate), the abortion clause (could have been made neutral or scrubbed out, after all silence does not mean endorsing or prohibiting. The courts could have been left the discretion to develop the law in the area and therefore avoid offending the Christians), the Kadhi Courts could have been left out of the constitution (after all the Muslims have not demonstrated compelling reasons for retaining the courts in the constitution. Furthermore, the historical reasons for entrenching the courts in the constitution 47 years ago may not be valid today. There was no adequate debate on this outside the historical justification).
The parliament failed in its responsibility to interrogate these issues. It allowed itself to be divided on party lines, ethnic, regional and parochial interests. If the constitution faces strong opposition during the referendum, the parliament should bear the responsibility.
That said, Kenyans should not allow themselves to be duped this time round like in 2005 referendum into rejecting this constitution. No constitution is perfect and a perfect constitution is a utopia and an ideal to strive to. Despite the shortcomings, this constitution if passed, will radically impact on Kenyans’ lives, democracy, institutions, governance, economic development, resources distribution, and human rights as well as the rule of law and gender equity.
Admittedly, though important to sections of the society, the flaws are too few. Focusing on the almost full glass is better now than on the empty glass. In 2005 the focus was on the shortcomings. Consequently, the good in the constitution which would have given Kenyans a better society were overlooked. Kenyans should reject anyone telling them to wait for a perfect constitution. It is better to seize what is on the table now, and then as the President and the Prime Minister implored, improve on the inadequacies in the future. Believe me once the new constitution becomes operational, the shortfalls will look trivial and chances for amendment may improve.
A word of caution to the politicians and church leaders taking hard positions: The 2007 post-election violence was not a result of a bad constitution but of inflexible positions. Rigidity blindfolded politicians in 2005 that they could not see the consequences of going to an election on an inadequate constitution.
Politicians may not do much damage to the constitution through opposition this time round. But Christian church leaders may have undue influence on their followers. Although I do accept that the issues at the heart of church leaders may have escaped adequate deliberation by the Parliament, Parliamentary Select Committee and Committee of Experts, the constitution is so important to the health of the entire nation that to oppose it may not be the prudent thing to do. My advice is that the love for the good of the nation should temper church leaders’ grievances and the obvious flaws.
Vote YES now! It is better to argue about amendments rather than the whole document in the future.